Citation Nr: 1709021
Decision Date: 03/23/17 Archive Date: 04/07/17
DOCKET NO. 10-23 478 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to service connection for a gastrointestinal disability to include ulcerative colitis, irritable bowel syndrome (IBS), celiac disease, and gastroesophageal reflux disorder (GERD), claimed as due to herbicide exposure or as secondary to a service-connected disability.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
L. Durham, Counsel
INTRODUCTION
The Veteran served on active duty from July 1956 to January 1960, and from November 1960 to November 1978.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the VA RO in Philadelphia, Pennsylvania.
In October 2015, the Board denied service connection for a gastrointestinal disability. In an April 2016 Joint Motion for Partial Remand (JMPR), the United States Court of Appeals for Veterans Claims (Court) vacated that portion of the October 2015 Board decision that denied service connection for a gastrointestinal disability and remanded the case to the Board for adjudication consistent with the Court's order. Subsequently, this issue was remanded by the Board for further development in June 2016.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2016).
The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required.
REMAND
Additional development is needed prior to the adjudication of the claim on appeal.
This issue was remanded by the Board in June 2016 in part to provide the Veteran with a VA examination and an opinion regarding the etiology of any diagnosed gastrointestinal disability. In June 2016, the Veteran underwent a VA examination, at which he was diagnosed with GERD, IBS, ulcerative colitis, and celiac disease. The examiner determined that the Veteran's claimed condition was less likely as not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran was treated for GERD, which was diagnosed in about 2000. There was no history of GERD while on active duty in November 1969, nor 1978. GERD is not recognized as caused by Agent Orange exposure. The examiner found that GERD is not aggravated by existing service-connected conditions. The examiner also found that the Veteran's celiac disease is due to gluten intolerance and is not recognized to be due to Agent Orange exposure. He did not have symptoms and diagnosis until 2002 for IBS and ulcerative colitis, so it is not something which began in the service. It is not aggravated by any of his service-connected conditions.
The Board finds this opinion is inadequate. Specifically, the examiner did not opine as to whether the Veteran's GERD, IBS, ulcerative colitis, or celiac disease is proximately due to a service-connected disability, nor did the examiner provide a rationale for his opinion that none of these gastrointestinal conditions are aggravated by service-connected disabilities. Furthermore, while the examiner determined that the Veteran's gastrointestinal conditions were less likely than not incurred in or caused by the Veteran's service, the examiner failed to discuss the Veteran's in-service gastrointestinal complaints listed in the June 2016 Board remand directive and whether these complaints could have been early signs of his current gastrointestinal disabilities. As such, this issue should be remanded for an addendum opinion.
Accordingly, the case is REMANDED for the following action:
(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Return the claims file to the VA examiner who provided the June 2016 VA opinion so that an addendum opinion may be obtained. If the same examiner is not available, an opinion should be provided by another examiner. Based upon review of the claims file, the VA examiner should provide the following opinions:
a. Did the Veteran's gastrointestinal disabilities (celiac disease, IBS, ulcerative colitis, or GERD) begin during service or are they otherwise related to any incident, injury, or event of service?
b. Are the Veteran's gastrointestinal disabilities (celiac disease, IBS, ulcerative colitis, or GERD) proximately due to or aggravated by a service-connected disability?
If the opinion is that the gastrointestinal disability was aggravated by a service-connected disability, the VA examiner should specify, so far as possible, the degree of disability resulting from such aggravation.
The Veteran has specifically indicated aggravation of his gastrointestinal disability by the service-connected diabetes mellitus, peripheral neuropathy, and/or abdominal aortic aneurysm.
In rendering the above opinions, the examiner must review the record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following:
*Current VA and private treatment records that reflect gastrointestinal diagnoses during the appeal period including ulcerative colitis, collagenous colitis, IBS, celiac disease, and GERD.
*An August 1965 service hospitalization report that reflects the Veteran was hospitalized for three days due to hepatitis following a two-week history of nausea, generalized weakness, and significant weight loss.
*A March 1970 service treatment record that reflects the Veteran reported vomiting and diarrhea; the service clinician diagnosed intestinal flu syndrome.
*A May 1977 service treatment record that reflects the Veteran reported an upset stomach.
*September 1978 service treatment records that reflect complaints of constipation.
*A November 1978 Report of Medical History form that reflects the Veteran endorsed a history of stomach, liver, or intestinal trouble. The service physician indicated that the Veteran's symptoms were not considered disabling.
*A June 2003 VA treatment record that reflects the Veteran reported his belief that his ulcerative colitis is due to exposure to Agent Orange. See also December 2003 VA treatment record.
*A July 2004 VA examination report that reflects the Veteran reported significant weight loss in 2001 that led to a diagnosis of celiac sprue and ulcerative colitis.
*An August 2004 statement in which the Veteran reported chronic diarrhea beginning in 1999. The Veteran indicated that his "immune system began attacking" him and he believed "the cause of this condition is Agent Orange."
*An August 2007 statement in which the Veteran reported chronic diarrhea from 1998 until 2002 when he was diagnosed with celiac sprue and collagenous colitis. The Veteran indicated that "both diseases are autoimmune [diseases] that require an environmental trigger to set them off. That trigger would be Agent Orange." See also May 2008 Statement ("the science on this topic is weak. I, of course, believe that Agent Orange is responsible."); July 2008 Statement; March 2015 Statement; July 2015 Statement; September 2015 Statement.
*April 2012 VA examination reports regarding service-connected diabetes mellitus and peripheral neuropathy that indicate the Veteran's gastrointestinal disorder may be interrelated with these service-connected disabilities. The Veteran contends this statement indicates aggravation of the gastrointestinal disability.
*A May 2012 statement from Dr. A.B., a private internal medicine physician, that indicated the Veteran experienced gastrointestinal symptoms following surgery for the service-connected abdominal aortic aneurysm. The Veteran contends this statement indicates aggravation of the gastrointestinal disability.
A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.
THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT.
If additional examination is required in order to respond to the questions above, such should be provided.
2. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim. The Veteran should be given an opportunity to respond prior to returning the case to the Board for further review.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2016).
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MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2016), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).